T & T Fabrications Ltd v Hubbard Architectural Metal Work Ltd

There was an arguable case as to the question of jurisdiction on the ground that the contract did not comply with section 107 of the Construction Act by reason of there being two material terms of the contract agreed orally which were not reduced to writing

21 April, 2008

T & T FABRICATIONS LTD V HUBBARD ARCHITECTURAL METAL WORK LTD

Technology and Construction Court
His Honour Judge David Wilcox
21 April 2008

The claimant brought court proceedings to enforce the adjudicator's decision in its favour. The defendant opposed enforcement on the ground that there were two material terms of the contract which had not been reduced to writing because they were agreed orally at a meeting between the parties. Judge Wilcox held that there was an arguable case as to the question of jurisdiction on the ground that the contract did not comply with section 107 of the Construction Act on this ground. In order for there to be an implied adjudication scheme under the Construction Act, the contract had to be section 107 compliant. The authority in relation to what constituted was the Court of Appeal's decision in RJT Consulting Engineers v DM Engineering (2002) where the majority held that all of the terms of the agreement should be reduced into writing (and not merely the material terms). The claimant submitted that the defendant was relying on parole assertions by the witnesses which were not recorded in writing. These assertions were denied by the claimant in sworn written evidence. The court was not in a position to adjudicate upon the weight of evidence and the credit of witnesses except where on the papers matters might appear manifestly absurd or wholly unlikely, such as when contradicted by agreed contemporaneous documentation. That was not the position in this case because (i) the evidence on which the terms contended for depended went to scope, quality and essential programming (ii) the evidence was that of the defendant's contracts director and (iii) the terms contended for were consistent with the account of affairs he put forward at a very early stage; and were corroborated by an independent witness who gave evidence in respect of the meeting at which the defendant stated that these essential terms were agreed. The evidence on which the claimant relied was a person who was not present at one of the meetings and therefore was not in the best position to express herself. There was therefore what appeared to be a real dispute as to the agreement of the terms alleged by the defendant. These were matters which the court could not and should not attempt to determine having regard to the evidence before it.